J-S47036-20

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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JAMES FREDERICK NEWMAN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 599 MDA 2020

Appeal from the Judgment of Sentence Entered February 20, 2020

in the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0006214-2017

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 25, 2021

James Frederick Newman (Appellant) appeals from the February 20, 

2020 aggregate judgment of sentence of 8 to 20 years of incarceration 

following his negotiated guilty plea to two counts of drug delivery resulting in 

death. Upon review, we affirm.

The trial court provided the following background.

On or about October 18, 2017, Appellant, age 66, was 

charged at the above-captioned docket [] with three counts of 

drug delivery resulting in death. After pre-trial motions, 

Appellant proceeded to trial by jury on two counts of drug 

delivery resulting in death.2 Trial commenced on January 6, 

2020. On January 9, 2020, the fourth day of trial, and after the 

Commonwealth presented all of its witnesses, [] Appellant 

alerted the court that he wished to plead guilty. He entered a 

guilty plea pursuant to a negotiated plea agreement to two 

counts of drug delivery resulting in death to an agreed period of 

incarceration of 8-20 years in a state correctional institution. 

Th[e trial] court accepted [] Appellant’s plea and deferred 

sentencing to February 20, 2020. 
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______

2 Following a hearing on Appellant’s petition for writ of 

habeas corpus on November 9, 2018, the Commonwealth 

withdrew count 1 – drug delivery resulting in death.

Trial Court Opinion, date, at 1 (capitalization altered; record citations and 

some footnotes omitted).

On February 20, 2020, at the start of his sentencing hearing, Appellant 

orally moved to withdraw his guilty plea. Specifically, his counsel stated, 

without elaboration, that Appellant was “seeking to withdraw his plea, and 

he’s asserting his innocence as to the two counts that he entered a plea to.” 

N.T., 2/20/2020, at 2. The Commonwealth “vehemently” objected, arguing 

that allowing Appellant to withdraw his plea would result in substantial 

prejudice to the Commonwealth. In support, the Commonwealth noted that 

it had already presented “close to 15 witnesses” over a four-day jury trial, 

including three expert witnesses whose total expenditures had cost the 

Commonwealth approximately $15,000, and the Commonwealth was about 

to rest its case when Appellant decided to plead guilty. Id. at 2-4. 

The trial court denied Appellant’s motion, which it noted had been 

raised at “the 11th hour plus 59 minutes,” because (1) there was compelling 

evidence of Appellant’s guilt presented over a four-day jury trial, at the near 

conclusion of which Appellant decided to plead guilty; (2) a full colloquy was 

conducted prior to the entry of Appellant’s guilty plea; (3) it would be a 

“terrible inconvenience and expense to the government to have to retry this 
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case”; and (4) it would put strain on the families of the deceased. Id. at 4-6. 

Thereafter, the trial court sentenced Appellant in accordance with his 

negotiated plea agreement to an aggregate term of incarceration of 8 to 20 

years. 

On March 2, 2020, Appellant filed a post-sentence motion to 

reconsider the denial of his motion to withdraw his plea. According to 

Appellant, he pleaded guilty, despite his innocence, as a result of “pressure 

from several family members who sat through trial testimony[.]” PostSentence Motion, 3/2/2020, at ¶ 12. Additionally, he assailed the sufficiency 

of the evidence presented against him, and claimed that, had he had the 

opportunity to testify at trial, he could have explained or refuted his 

statements to police, which he claims comprised the only evidence that 

Appellant delivered the drugs in question. Id. at ¶¶ 14-20. The 

Commonwealth filed a response, and on March 23, 2020, the trial court 

denied Appellant’s post-sentence motion. On April 7, 2020, the trial court 

granted counsel’s request to withdraw and appointed new counsel for 

Appellant. 

This timely-filed notice of appeal followed.1 Appellant presents a single 

issue for our review: whether the trial court erred in denying his pre-

 

1 Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 

1925.
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sentence motion to withdraw his guilty plea. Appellant’s Brief at 5. We 

consider this claim mindful of the following.

“We review a trial court’s ruling on a pre-sentence motion to withdraw 

a guilty plea for an abuse of discretion.” Commonwealth v. Islas, 156 

A.3d 1185, 1187 (Pa. Super. 2017) (citation omitted). “Preliminarily, we 

recognize that at ‘any time before the imposition of sentence, the court may, 

in its discretion, permit, upon motion of the defendant, or direct sua 

sponte, the withdrawal of a plea of guilty [] and the substitution of a plea of 

not guilty.’” Commonwealth v. Blango, 150 A.3d 45, 47 (Pa. Super. 2016)

(quoting Pa.R.Crim.P 591(A)). Our Supreme Court clarified the standard of 

review for considering a trial court’s decision regarding a defendant’s presentence motion to withdraw a guilty plea.

To be clear, when a trial court is faced with a pre[-]sentence 

motion to withdraw a guilty plea, the court’s discretion is not 

unfettered. As this Court has often explained, “[t]he term 

‘discretion’ imports the exercise of judgment, wisdom and skill 

so as to reach a dispassionate conclusion, within the framework 

of the law, and is not exercised for the purpose of giving effect 

to the will of the judge.” Commonwealth v. Widmer, 744 A.2d 

745, 753 (Pa. 2000) (citation omitted). Thus, a court’s discretion 

in ruling on a presentence motion to withdraw a guilty plea must 

be informed by the law, which, for example, requires courts to 

grant these motions liberally, Commonwealth v. Carrasquillo,

115 A.3d 1284 (Pa. 2015) , and to make credibility 

determinations that are supported by the record, see 

Commonwealth v. Myers, 722 A.2d 649, 652 (Pa. 1998) 

(explaining that, “when appellate review involves the trial court’s 

findings of fact and credibility determinations, those findings are 

binding on the reviewing court if they find support in the 

record”). Moreover, while an appellate court should not 

substitute its judgment for that of a trial court that ruled on a 
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presentence motion to withdraw a guilty plea, the appellate 

court is tasked with the important role of assessing the propriety 

of the trial court’s exercise of its discretion. See Widmer, 744 

A.2d at 753 (“The propriety of the exercise of discretion in such 

an instance may be assessed by the appellate process when it is 

apparent that there was an abuse of that discretion.”).

Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019) (citation format

altered).

[W]hen a defendant files a presentence motion to withdraw a 

guilty plea based upon a claim of innocence, the “innocence 

claim must be at least plausible to demonstrate, in and of itself, 

a fair and just reason for presentence withdrawal of a 

plea.” Carrasquillo, 115 A.3d at 1292. Stated more broadly, 

“the proper inquiry on consideration of such a withdrawal motion 

is whether the accused has made some colorable demonstration, 

under the circumstances, such that permitting withdrawal of the 

plea would promote fairness and justice.” Id. While the 

Carrasquillo Court acknowledged that the “policy of liberality 

remains extant,” the Court explained that this policy “has its 

limits, consistent with the affordance of a degree of discretion to 

the common pleas courts.” Id.

Thus, the Carrasquillo Court clearly established that trial courts 

have the discretion to assess the plausibility of claims of 

innocence. Consistent with the well-established standards 

governing trial court discretion, it is important that appellate 

courts honor trial courts’ discretion in these matters, as trial 

courts are in the unique position to assess the credibility of 

claims of innocence and measure, under the circumstances, 

whether defendants have made sincere and colorable claims that 

permitting withdrawal of their pleas would promote fairness and 

justice.

Id. at 120-21 (some citations omitted).

[T]he determination of whether there is a “fair and just reason” 

to permit the pre-sentence withdrawal request should be based 

on the totality of the circumstances attendant at the time of 

the request, including the timing of the assertion of innocence, 

the statements made by the defendant in association with his 
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declaration of innocence, and the plausibility of the defendant’s 

statements in light of the evidentiary proffer made by the 

Commonwealth at the plea hearing.

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 24 (Pa. Super. 2017), 

quoting Carrasquillo, 115 A.3d at 1286, 1292-93 (emphasis added).

Here, in considering Appellant’s pre-sentence motion to withdraw his 

plea and his post-sentence motion to reconsider, the trial court found

little merit in [Appellant’s] claim of innocence when the 

Commonwealth was about to rest its case-in-chief and [] 

Appellant had the opportunity to present witnesses and testify 

on his own behalf. If all that [] Appellant claims is true in his 

post-sentence motion, surely [] Appellant could have proceeded 

at trial and offered his evidence and let the jury decide. There 

was no new evidence discovered from the time Appellant entered 

his guilty plea to sentencing that would afford [] Appellant a new 

trial or provide a sufficient reason for [] Appellant to withdraw 

his guilty plea. He did not raise any other facts or cite specific 

circumstances that could have provided a basis for th[e trial] 

court to find a sincere or plausible claim of innocence. Simply 

put, Appellant’s application to withdraw his guilty plea is an 

attempt to manipulate the justice system.

Trial Court Opinion, 5/14/2020, at 5-6.

Upon review, we discern no abuse of discretion in the trial court’s 

conclusion that Appellant’s bald assertion of innocence on the day of his 

negotiated sentencing hearing was not in any way “plausible to demonstrate, 

in and of itself, a fair and just reason for presentence withdrawal of a 

plea.” Carrasquillo, 115 A.3d at 1292. Appellant’s assertion of new 

reasons, after sentencing, for the trial court to reconsider his pre-sentence 

motion to withdraw his plea did not remedy his failure to do so at the time of 
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the initial request. See Johnson-Daniels, 167 A.3d at 24. Accordingly, we

conclude that the trial court did not abuse its discretion in denying 

Appellant’s pre-sentence motion to withdraw his plea.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/25/2021